First Nations election law could face rough ride

Hey there, time traveller!This article was published 26/8/2014 (835 days ago), so information in it may no longer be current.

The First Nations Election Act slipped rather quietly through Parliament this spring even though it is important, history-making legislation that can solve a lot of problems for 37 First Nations in Manitoba (241 nationally) that still hold elections under the Indian Act. Those who want to opt into the new legislation can change the terms of office for chief and council from two years to four, and First Nations in each province can choose to hold their elections at the same time. This is intended to introduce stability and co-ordination to the election process.

Under the old system, First Nations had to hold elections every two years, which could hinder progress as frequent changes in political leadership could slow things down while a new administration got up to speed and became familiar with various projects, programs and services underway or in development in their community and provincewide. To elect a government that will hold office for four years would allow more time for experienced leaders to see projects through. This makes sense, except of course, if the community elects a government that is incapable or corrupt and gets stuck with poor leadership for four years. This would then require some form of complicated and time-consuming recall system.

Further, having First Nations in Manitoba, which continue to hold elections under the Indian Act, hold elections on the same day of the same year also has some merit. At times it can be difficult for provincial organizations, such as the Assembly of Manitoba Chiefs, the Southern Chiefs Organization and Manitoba Keewatinowi Okimakanak, to lobby for First Nations rights with newly elected representatives constantly coming on board and requiring time to become familiar with work that has been ongoing. No doubt this would be a difficult change to make at first with some chiefs having just been elected to office, some of whom will have served about a year and others who are near the end of their terms. It may be easier to develop a common day to elect all chiefs if the switch is made to four-year terms.

The new legislation also contains provisions to ensure the fairness of elections. Many people want to ensure fraudulent activities, such as granting favours or favouritism in such things as jobs and housing, are not used by any candidate. They want clear penalties for committing such acts.

There are also provisions to ensure votes are counted fairly. It would seem these make sense, but some First Nations leaders have objected to the act because it gives too much power to outside jurisdictions such as the aboriginal affairs department and the courts. First Nations want to develop their own internal dispute mechanisms and appeals processes.

The problem of outside interference really raises its head when it comes to settling disputes by First Nations that hold elections under traditional rules, such as through hereditary chiefs or custom councils (about half of the First Nations in Manitoba). The new act allows the minister to compel First Nations to "opt in", which is contrary to all self-government agreements in place.

The most controversial clause of the new First Nations Election Act could be its effort to establish criteria for eligibility of candidates to become chief. The law would require candidates to post a fee that would be refunded if that candidate obtained a certain amount of votes. The idea here is to ensure that candidates are serious.

The very idea of having to post any amount of money to exercise one's democratic right to run for chief has a certain taint to it. Is the situation that bad in First Nations communities a law must be put in place? Sure, every so often, there are some fringe candidates who run for strange or frivolous reasons, but there is also a very strong tradition of allowing everyone in the community to have a say. This is the basis for sharing circles.

It is not clear how much money would need to be posted, but certainly there cannot be any election laws that would exclude the poor from running. And what about young people who may be running for the experience of campaigning in elections or to raise issues that are important to them, but who would not otherwise be considered qualified to be elected to a position that requires more experience and expertise? And then there may be single-issue candidates who just want to bring attention to an important issue through the election process.

If the First Nations Election Act is "all or nothing", there is going to be some trouble getting it up and running. Surely, the chiefs and the AMC will be able to develop ways to use the good provisions of the act and reject what doesn't make sense. They have proposed an independent and impartial elections tribunal. After all, these are elections that allow First Nations people to exercise their democratic rights.

Who better to develop the rules governing that election process and to resolve disputes when they occur than First Nations people themselves?

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